The Faculty Lounge

Dean Search Update: Baltimore

The University of Baltimore has named five finalists for its law school deanship.  Story here.

There Really Is No There There

While I agree with Calvin Massey that Linda Greenhouse could have articulated the case in favor of the individual mandate more effectively, I think she’s correct in her bottom line about the challenge to the mandate.

In particular, the constitutional challenge ultimately rests on a flawed premise—that if Congress can require people to buy a good or service solely because they are living in the United States, the commerce clause will be converted into an expansive power to compel just about any purchase. Today, we must buy health care coverage, tomorrow we might have to buy broccoli or GM cars.

But in fact, invalidation of the individual mandate would protect the public from only a few purchase mandates—mandates to purchase some kinds of insurance.

To be sure, a ruling against the mandate would mean that Congress could not force us to go out and buy broccoli or GM cars. But the government already has other ways to make us buy those goods. Congress still would have the power to require grocery stores and restaurants to include broccoli with every sale, and it still would have the power to require automobile dealers to sell only GM vehicles. If Congress really wants to make us buy something, it can find a voluntary economic transaction to regulate. That the individual mandate is not tied to a voluntary economic transaction simply reflects the fact that health care insurance must be procured in advance of the time when health care is needed.

Many slaves were paid overtime

When I first read that slaves were paid overtime, I was convinced I had read that wrong. Since a master could whip a slave to make him work, why would he pay them instead? If the planter was going to pay his workers, why did he need slaves?

Slaves leased by their owners were more often paid a bonus or overtime. Since someone who leased a slave was liable if the slave was killed or injured, whippings were (somewhat) limited. But, owners often paid their own slaves overtime, suggesting that some owners understood that rewards motivated their slaves better than punishment.

Slaves working in forestry, mining, and industry were often paid a piece-rate, with a bonus for exceeding the quota. Frederick Law Olmstead toured the eastern seaboard on the eve of the Civil War and reported that slaves in tobacco factories, forestry, and mining earned "over-wages."

Even slaves working in agriculture were sometimes paid a bonus, especially during the harvest when more work was required. By custom and law, slaves were not required to work on Sunday. If slaves worked for their owner or for someone else, they would be paid.

Edit: Here are a few more sources besides Olmstead.

2 Encyclopedia of African American History 245 (Paul Finkelman, ed. 2006)(describing enslaved caulkers' wages)

Frederick Douglass, Narrative (1845)(describing how he hired his own time, paying a portion of his wages to his owner)

O. Nigel Bolland, Proto Proletarians? in From Chattel Slaves to Wage Slaves 133-34 (Mary Turner, ed. 1995)(describing overwork in tobacco, iron, turpentine, coal, woodworking, logging, ditching, and ferries)

Charles B. Dew, Sam Williams, Forgeman, in Appalachians and Race 81-82 (John C. Inscoe ed., 2001)("Compensation for extra work was almost a universal feature of the labor system of slave-manned furnaces and forges in the Old South.")

Snippet view won't allow me to link to the page, but these two books have plenty of detail:

Dylan C. Penningroth, The Claims of Kinfolk (2003)

Ronald L. Lewis, Coal, Iron, and Slaves (1979).

The Academic Discourse of Law or Foucault in Cyberspace

I would like to thank Al Brophy,   as well as the readers and commentators who have responded to my recent posts here at Faculty lounge.  The past four posts to this blog were part of an experiment. I decided to   take a cue from Foucault.  In “the discourse on language,” Foucault wrote, “the production of discourse is at once controlled, selected, organized, and redistributed according to a certain number of procedures.” Foucault described his method of unmasking the power relations at the root of these discourses as archeology.  I wondered if the new medium of blogging might not help me do something analogous,   reveal something about contemporary legal discourse by exploring  an ethnography of power.   Although academics are used to analyzing power relations, they are generally uncomfortable having these insights applied to their own practices, an aversion that is all too human and certainly understandable.  Still, we would be remiss if we did not include our own scholarly world within the purview of our field of critical vision.   I   tried to use these posts to push the envelope and see what types of reactions I would get.  I intended to be provocative, and I have succeeded. I hope to analyze these various responses and will be presenting a preliminary version of my findings at the upcoming Organization of American Historians Meeting in April.

A few quick points are worth making with regard to some of the substantive issues discussed here. I think that there is an important difference between the concept of the police power and the changing conceptions of that power, particularly as they were developed in later legal doctrine.  Although it is possible that Mike Rappaport and I were simply talking past one another, as David Bernstein suggested, I am inclined to think there is more going on here. I think that the article by Ben Barros on the early history of the police power has a number of contributions to make this debate and I hope it gains a wide readership.

As far as   Mary Dudziak’s point goes, I  suspect we would not agree about the  role of humor in the blogosphere in particular, and the academy in general.   Orrin Kerr’s question, I must confess, remains the most interesting one yet posed.  Although I recognize that theorizing first, and researching later, or sometimes never,  has become quite common among some constitutional theorists, this is ultimately not a good thing. I find much originalist writing, especially theoretical writing in this genre, particularly egregious in this regard.  Obviously, a short think piece can sometimes be helpful.  At the same time I don’t think that writing constitutional theory absolves you from doing your due diligence, particularly when drawing on historical sources or philosophical theory.   These issues, however, are not well suited to debating on a blog.  It is an issue that I think merits serious attention, and perhaps, a bit more humor as well.

 

 

Civil Rights Movement Trivia, Part 3

It's Friday afternoon; I'm working furiously to finish my paper on jurisprudence at UVA before the Civil War.  Tons of good things to talk about down the road -- including the extraordinary James Holcombe, who came from an antislavery family and was zealously, zealously proslavery.  And Albert Taylor Bledsoe and some more obscure characters.  I'll be posting on this in early April, I hope.  

... Right now it's time for what I think will be my final civil rights trivia question for a while.  What's the building at right and where is it?  That's the easy part.  What was it during the civil rights era, and why was it important?

Shout out to David Garrow for suggesting this series of posts.

Supreme Embarrassment

When will the Supreme Court be ready to enter the 20th (not to mention the 21st) Century? Next week, the justices will hold one of their most important oral arguments in decades, and the public will not be able to watch the proceedings, or even listen to them live. It’s time for the justices to show the kind of “civic courage” that Antonin Scalia thinks the public ought to show when it tries to shape governmental policy. Just as he expects voters to validate our country’s motto as the “Home of the Brave,” so should he and his colleagues do the same. The challenges to the Affordable Care Act have provided a wonderful opportunity to educate the people about the Constitution. It’s a shame the Supreme Court is not taking full advantage of that opportunity.

Legal academics address the Martin shooting...

As most of us already know, the recent shooting of an unarmed African-American teenager by a neighborhood watch volunteer has captured the nation's attention. Legal academics have also provided their views on the matter; many addressing the self-defense claim, and others discussing  local police failure to arrest the shooter. Here is a list of what some of us have written:

 

Professor Ken Nunn's essay in the NY Times:

http://www.nytimes.com/roomfordebate/2012/03/21/do-stand-your-ground-laws-encourage-vigilantes/racism-is-the-problem-not-the-stand-your-ground-laws

 

Here is a link to what Professor Darren Hutchinson wrote in Dissenting Justice:

http://dissentingjustice.blogspot.com/2012/03/trayvon-martin-stand-your-ground-rule.html

 

Professor Adam Winkler's essay in the NY Times:

http://www.nytimes.com/roomfordebate/2012/03/21/do-stand-your-ground-laws-encourage-vigilantes/what-the-florida-stand-your-ground-law-says

 

Here is what Professor Jeannie Suk wrote in the NY Times:

http://www.nytimes.com/roomfordebate/2012/03/21/do-stand-your-ground-laws-encourage-vigilantes/self-defense-is-part-of-our-heritage

 

Finally, below is a link to what I wrote in the Huff Post after several individuals asked me to address recent media claims that the race issue became more complicated after the shooter's dad claimed something to the effect that because the shooter is Hispanic, and therefore a minority, he had no racial bias.

 http://www.huffingtonpost.com/ediberto-roman/trayvon-martin-case_b_1371552.html#access_token=AAAAACuIpepUBADHfUaIZCEw1clg0er5F76rAgEuumews8IkU5ZCNamfd7qANbqkqPsWVRZA4yUp7utAZA4YLXwqgpNca8Nrgdk2hl6VqduZBCMLWelnOG&expires_in=6723

E

Greenhouse on Obamacare

Linda Greenhouse writes in the "Opinionater" on-line column of the New York Times that the case against the constitutional validity of the Affordable Care Act (more widely known as Obamacare) is “so manifestly weak that it doesn’t deserve to win.”  That’s surely an opinion, but how does she back it up?  Mostly by noting that the attackers characterize the mandate as unprecedented.  Greenhouse ridicules this argument by observing that there are lots of things that have been enacted for the first time and are surely constitutionally valid.  True, but what she fails to address is that, precisely because it is unprecedented, the Court will make new law no matter what the outcome.  There are, of course, respectable arguments in favor of its validity – the failure to have health insurance coupled with the near certainty that every person will need health care at some time in their life has a substantial impact on the interstate market for health care.  But the precise point – whether Congress can compel every person to purchase a financial product from a private vendor – has never been addressed.  Despite the usual invocations of Wickard, the mandate is not automatically controlled by that case.  Farmer Filburn voluntarily entered the market for wheat, either by growing wheat or by his use of wheat for other agricultural purposes, or both. He became subject to the regulation by virtue of his participation in economic activity.   The mandate, however, subjects every person to regulation by virtue of breathing.  Only by claiming that mere existence is an “activity” that substantially affects interstate commerce can Wickard be dispositive.  Maybe that’s so, but that question has never been addressed.

            Now it may be that the mandate is a necessary and proper means to the valid end of regulating the delivery of health care and health insurance throughout America, but that argument is also debatable.  What Congress has done, for the most part, is regulate the provisions that must be in health insurance policies.  Whether requiring every American to buy one of these policies is “appropriate” or “plainly adapted” to that end is open to dispute.  Of course, the argument in its defense is that requiring insurers to cover pre-existing conditions, and to provide comprehensive preventive care at no cost to the insured would make insurance ruinously expensive unless everyone is required to pony up for a policy.  That sounds like it’s reasonably related to the end, but then Comstock roiled these waters a bit.  Is the mandate a “modest addition” to federal regulations “that have existed for many decades”? Hardly.  Does the mandate “reasonably extend[]” a “longstanding” federal system?  Nope.  Does it “properly account for state interests”? Not if you think that Massachusetts is free to adopt Romneycare and every other state is free to decline to do so.  Of course Congress can pre-empt these state choices, but that begs the question – Congress’s power to do so is what is at issue here.  Is the mandate “too sweeping in its scope”? The majority in Comstock provided no metric to judge this factor, but the mandate is pretty sweeping – if you breathe, you must buy health insurance.  I have no idea whether the five members of the Comstock majority will heed their own analytical construct, but it surely raises some valid questions.

            None of this appears in Greenhouse’s piece.  She used to be an excellent reporter on the Court’s business.  Now she's an "Opinionater."

            Here is  James Taranto's take  on Greenhouse. 

Call For Papers - Teaching About Domestic Violence

The journal, Violence Against Women seeks original manuscripts for a special issue entitled “Teaching About Domestic Violence.”  The special issue will be edited by Madelaine Adelman (Justice & Social Inquiry, Arizona State University) and Donna Coker (Law, University of Miami).  Manuscripts are due no later than October 1, 2012.  All the details after the jump.

The Bizzaro World of Originalism and the Rise of the Constitutional Echo Chamber

 

Mike Rappaport’s paraphrase of “Physician Heal Thyself” is richly ironic.  In his most recent post at the Liberty Law Blog Mike  makes the following astonishing claim:

While we have argued the Constitution should be interpreted in accordance with original methods, we have not argued what those methods were.  We believe that this would involve an in depth and balanced inquiry into the historical materials that we have not engaged in.  We do, however, believe that the leading methods at the time were all some version of originalism – original intent, original public meaning, etc

Speaking of physicians, let us pause for a moment and consider what would happen to a professor of medicine who boasted that he and a coauthor had decided to follow Rappaport’s model:   

We have argued for a particular theory, but we have not specified the exact contents of that theory. We do feel that someday we must actually elaborate this theory in some detail.   To do so, however,    would involve doing a serious amount of time consuming research and we would feel obliged to do this research in a rigorous, neutral, and comprehensive manner.   In the meanwhile we thought we would publish our results now

This is a model of scholarship that belongs in the Bizzaro world of   Superman comics.   Although the amount of   deeply researched and intellectually sophisticated legal scholarship continues to grow and vastly out numbers  this type of  Bizzaro  originalist scholarship, the legal academy is clearly in crisis and Rappaport’s post is a symptom.    Originalism has become a vast scholarly echo chamber.  Originalists cite each other’s work as authority, invite each other to conferences largely dominated by other originalists, publish each other’s papers in their own student edited journals without peer review, and then blog about the paradigm shifting quality of their own work and that of their friends!   I am sorry if my posts have seemed unduly harsh or not collegial, but the system is broken and it will never be fixed unless we acknowledge that “something is rotten in the state of Denmark.”

Trite Airline Slogans

Being based in Cleveland, previously a Continental Airlines hub, I am now a victim, er customer, of the new United Airlines presence in North East Ohio.  Very recently the merger between the two airlines was completed and I took my first flight this week under the new United processes.  It was a truly surreal experience for a number of reasons.  The Continental staff don't seem to have been trained particularly well in the new computer systems and spent a lot of time griping about how they didn't know how to make simple changes to people's tickets anymore, and calling for help.  The boarding procedure now involves splitting even tiny little regional jets into 8 or more boarding zones including 3 or 4 zones for various levels of frequent flyer members.  The gate lounge agents seemed mystified as to who was supposed to board in what order.

But I think my favorite change was in the trite airline slogans prominently displayed throughout and around the Cleveland airport.  I didn't think much of Continental's "Work Hard, Fly Right" billboards in the past.  I mean, c'mon, is that really a VISION for a major airline?  Did we really think they were going to 'be lazy' and 'fly poorly'?  But the Continental slogan was a work of literature in comparison to United's new "Place your Expectations in the Upright Position".  I'm still puzzling over what mental contortions I would need to attempt in order to place my expectations in the appropriate position.  And even if I did manage it, I fear I would be sorely disappointed if this week's experience was anything to go by.

 

Updated Visitors List 2012-2013

The updated visiting faculty list for next year is available here.  Keep those updates coming to me so I can keep the list as current as possible (JDL14@case.edu).

Kudos to Al for this Important Contribution.......

 

 

Drexel Seeks Intellectual Property VAP - Short Application Deadline

As I noted  over at Leiter, a wonderful young colleague of mine - Hunter Tart - passed away unexpectedly last week from a brief illness.  He was a visiting assistant professor teaching intellectual property courses.  One difficult part of being an associate dean is quickly turning from the sadness of loss to the practical issues that follow.  Unfortunately, I have no choice.  Thus:

Drexel University Earle Mack School of Law seeks a visiting assistant professor to teach in the area of intellectual property law.  The individual will be expected to teach one section of patent law and one section of trademark law, with the remainder of the package to be negotiated.   We anticipate offering a two year contract.  Interested candidates should send a cover letter and CV to me by Monday, March 26.  Please direct these materials to my assistant, Leanne Marshall, at  lmm368@drexel.edu. Feel free to call or email me directly with any questions.

Underestimating Religion

 Mitt Romney just wrapped up victory in Illinois and, for the moment, quelled republican fears that Santorum would fundamentally alter the race. Some now are willing to say the race is all but over. What has struck me throughout this season is how committed the establishment has been to ending this process in favor of Romney, notwithstanding his intractable weakness with evangelicals. I am not sure the establishment or media fully understand or appreciate his weakness. Framing his struggle as a southern or conservative “problem” understates the issue. More accurately, it is an immovable obstacle. In race after race, he is trounced in the evangelical column. While evangelicals are deeply committed to the Republican Party, that commitment is born out of religion and, from their perspective, Romney does not share their religion.

Evangelicals routinely go on mission trips during the summer to convert Mormons. To the outsider, the differences between Mormons and evangelicals may not appear to be significantly larger than the differences between evangelicals and Catholics. Yet, evangelicals do not make routine treks to the northeast to convert Catholics. They see Catholics as Christians. They do not see Mormons as Christians. This is not the sort of thing evangelicals might want to announce in civil society or an issue on which a politically correct media would want to fan the flames, but it is real nonetheless.

This does not mean that evangelicals will vote in droves for Obama. Quite the contrary. A majority will show up to vote for Romney should he be the candidate because, like any other religion, not all evangelicals are devout or hard-liners. These evangelicals will have little problem voting for any Republican whose name lands on the ticket. But the key to winning a general election in a close race is turnout. Short of a summer conversion, I don’t see how Romney can generate huge turnout among one of the party’s key demographics.

None of this is a critique of religion, but rather an attempt to connect back to my blog earlier today about the new study on racial attitudes and their effect on health care opinions. What does a study on race have to do with Romney's religion? In addition to race, the study noted the importance of sharing religious identity with a political leader. Thus, a key question in this election cycle is whether religious identity is more important than race in politics? That question is too simple, just like the study’s comparisons of Obama healthcare reform versus Clinton reform was too simple. Sometimes race is more important and sometimes religion is.

Fully sorting out "sometimes" would require an article, but for a subset of evangelicals, religion is more important than anything and disqualifies Romney. For a portion of Americans, race is more important than anything. But among independents and democrats, that number is relatively small. Thus, in terms of turn-out, Obama would presumptively have a significant advantage in a close race. Then again, maybe I underestimate the extent to which hating a candidate (in this instance Obama) can cause one to lose one’s religion, at least momentarily. I don't think as many hate Romney and therein lies is biggest strength.

 

National Conference on School Diversity

The National Coalition for School Diversity will be hosting its second conference on school diversity at Georgetown Law Center on May 17th. Two years ago it was at Howard School of Law, attended by over 300 participants and, on every panel, brought together officials in the Obama administration with advocates and researchers. This May 17th event will again offer everyone a thorough understanding of new and upcoming policies and research relating to diversity in public schools. Registration and the agenda are available here.

 

Obama v. Clinton: New Study on Healthcare and Racial Attitudes

A new study in the American Journal of Political Science finds that general racial attitudes likely affect how Americans feel about healthcare.  Researchers have long since studied how racial attitudes affect responses to specific policies like desegregation and affirmative action.  Unsurprisingly, they find racial attitudes have an impact.  But this new study asks whether racial attitudes have a bearing on issues unrelated to race.  The study finds that they do.

The study also suggests that sharing some core aspect of identity, such as race or religion, with a political leader makes one more likely to support that leader’s policies.  For instance, African Americans are more supportive of identical health care reforms when they are proposed by Obama than say Clinton. 

The most interesting finding in the study, however, is that white liberals are also more supportive of hypothetical health care reforms when proposed by Obama than Clinton.  But whites with conservative attitudes become less supportive of reform when proposed by Obama.  In short, Obama’s race would seem to be a plus factor among white liberals and a minus factor among white conservatives.

How does one square this finding with the general notion that sharing racial or religious identity with a political leader positively impacts one’s support for their policies.  Does this mean that racial attitudes trump racial identity?  If so, does racial identity matter as much as many assume, or do racial identity and racial attitudes overlap so much that we mistake the important factor? 

I think the issue is far more complex than a comparison of policies by Obama versus Clinton could hope to show.  In the past, race may have always been the trump card.  Now, it would seem race is incredibly powerful, but also incredibly circumstantial.  For instance, in a recent blog, I argued that there might be something special about being president that changes the racial calculus for Obama.  I queried whether many were over-protective of their first African-American president early in his term and whether this protectiveness might have faded over time as Obama solidified his stature as “the president.”  Of course, race is relevant here, but part only one part of a wider intersecting set of paradigms and circumstances.

A Stunning But Largely Unnoticed Anomaly In Recent Employment Outcomes Data Suggests That Things May Be Even Worse Out There Than We Imagined

In the Spring, a law dean’s fancy turns to thoughts of . . . jobs.  In reaction to employment prospects for new law graduates that are seriously inadequate for what is probably the first time in the history of the American legal profession, employment outcomes data are the focus of increasing attention.  Percentages of the next-to-last graduating class employed at graduation and nine months after graduation currently comprise 18% of the basis for the much-maligned US News rankings, the latest installment of which was released just last week (see here).

And rightly so.  Just ask yourself a simple question:  If you were deciding whether or where to go to law school, how important would you consider information about how many of a law school’s recent graduates had found full-time law jobs?  It’s a pretty essential measure of how likely it is that you would be able to use the degree you were about to spend over $100,000 and three years of your life acquiring, right?

Now let’s take it a step further:   How important would you consider information about how many of a school’s recent graduates listed as “employed” in fact had only temporary jobs funded by the law school they had attended?  Pretty darn important, because realistically only those graduates unable to find a permanent, paying, full-time law job would take a temporary one funded by their school.  (Surely you would prefer a temporary school-subsidized job to no job at all, but equally surely you would prefer a “real,” permanent, paying law job over either.)

Since the Great Recession began, we’ve heard here and there (and more recently here) about a few law schools helping out a few graduates with employment subsidies of one kind or another.  But US News’s reports of school after school boasting over 90% postgraduate employment got us thinking—how many of those are really permanent paying law jobs?

The preliminary results of our inquiry are nothing short of stunning.  I expect to post a more comprehensive dataset within a week or two, but at first glance it appears that significant numbers of top-tier law schools are subsidizing the employment of significant numbers of their recent graduates.  Here are a few examples:

• Washington & Lee (US News rank 24):  The school (and US News) report 89.4% of the class of 2010 employed at graduation, and 90.2% employed 9 months post-graduation.  But according to W&L’s own website, a full 41% (yes, 41%) of the graduating class held temporary positions funded by the law school at graduation, and 10% of the class still did 9 months later.  Take out the temporary positions funded by the law school, and the actual employment numbers are 48% at graduation and 80% at nine months. 

 

• Vanderbilt (US News rank 16):  The school (and US News) report 89.6% of the class of 2010 employed at graduation, and 91.6% employed 9 months post-graduation.  Over 20% of the class of 2010 held temporary positions subsidized by the law school at graduation, and 11% still did 9 months later.  Take out the temporary subsidized positions, and the actual employment numbers are 68% at graduation and 80.6% at 9 months.   

 

• University of Minnesota (US News rank 19):  Reports 91.9% of the class of 2010 employed at 9 months.  14.1% of those were in positions funded by the law school (2.4% of those in what the school describes as “long-term” positions).  The actual employment number at 9 months is 78-80% depending on how you count the “long term” school-funded placements. 

 

• Notre Dame (US News rank 22):  Reports 91.3% of the class of 2010 employed at 9 months.  12.2% of the class held temporary positions through a school-funded “Public Service Initiative.”  The actual employment number at 9 months thus is 79.1%. 

 

• Arizona State (US News rank 26, jumping up from 40 last year):  Reports 98.2% of the class of 2010 employed at 9 months.  12% of the class holds school-funded fellowships.  Take these out, and the actual employment number at 9 months is 86.2%. [post amended 3/20/12 to include repaired link to ASU employment data]

 

• Even mighty NYU (US News rank 6) reports 96.6% of the class of 2010 employed, but 7.6% of the class held temporary “postgraduate grant positions.”  The actual employment number thus is 89% (with some lack of clarity about when some portion of the grant recipients found permanent employment).

Let me be clear:  These data do not show that any school has been dishonest in its reporting.  To the contrary, all the information provided here is publicly available on the relevant schools’ websites.  Nor do these data suggest that any benefit of this kind is intended to mislead anyone regarding a school’s postgraduate employment prospects.  Again to the contrary, this is a rational strategy to help graduates find permanent law jobs in the current depressed market, for the simple reason that the best way to get a job is to have one, and the experience and references it provides, from which to move on. 

But there are a number of very important things that these data do show.  As mentioned above, we’ll have a more complete dataset in a week or two, but I predict that more detail will indicate that significant numbers of the most prestigious law schools in the country are funding temporary employment for significant portions of their graduating classes.  And what that suggests is that the current legal job market is appreciably more depressed than many interested observers had previously estimated.  We thought it was bad, but not this bad.  After all, if something like one in five of the graduates of the 50 most prestigious law schools in the country can’t find a permanent, full-time law job within a year after graduating, what does that tell us about the prospects for graduates of the additional 150 accredited schools falling below them on anybody’s list?  There are a number of schools in the “unranked” section of US News’s listing with nine-month placement rates under 50%.  Holy cow.

Another thing these data show beyond serious question is that US News has screwed the pooch again.  Since we can all agree that any rational decisionmaker would consider the prospects for a temporary school-subsidized job to be much less valuable than the prospects for a permanent full-time law job, US News’s investiture of 18% of its entire ranking in a statistic that fails to distinguish between the two when the former will sometimes be 20% or more of the latter inevitably results in some pretty serious distortions.

I will have more to say about all this (including some suggestions about why we are where we are in the job markets today) in future posts.  In the meantime, it’s worth noting that the Pre-Law Committee of the ABA Section on Legal Education and Admissions to the Bar has circulated proposed revisions to Accreditation Standard 509 and its associated forms (which concern the “consumer information” that accredited law schools must disclose to the public) requiring law schools to break out postgraduate employment numbers by (among other things) part-time vs. full-time; long-term vs. short-term; “bar-passage required” vs. “JD preferred” vs. “professional position” vs. “nonprofessional position”;  and “Of employed—University/Law School Funded Short Term” (see here and here).  Let’s hope the Committee sticks to its guns.

As for US News, it acknowledges the coming changes and says it “plans to incorporate this more granular data into our methodology for future rankings.” 

--Bernie

My Life with Barbeque, Part 35 (Or Thereabouts)

 Well, another year is over; graduation is a sure sign of this, but for me one of the key markers of the end of the year is my dinner with the winners of my package for the public interest auction.  For years now it's been barbeque dinner, followed by karaoke.  For like 1o years, running back to my days in Alabama.  

We began the evening in Joe's Famous BBQ.  Long time readers of the faculty lounge may recall that BBQ has loomed large in my life, especially in Oklahoma and Alabama -- where I may very well owe my job to BBQ (and, oddly, OU football).  I was a little worried walking in there.  I was thinking "if they have to call it famous, that's probably a bad sign."  (Dreamland isn't called famous.  It is famous.  For example, Senator Santorum went there when he was in Alabama campaigning for the primary.)  But I have to say Joe's is actually pretty good.  It's in the same shopping center as Whole Foods, which means it's a little too upscale for me.  As I've said before if they hand you a napkin with your can of soda, they're too high fallutin' for my down home taste.   Still, I was pleasantly surprised with the quality.

Let's face it: Chapel Hill is not the place to go for good bbq.  Upscale food, yes.  My recent visit to The Lantern -- the well-known hang-out for cool people like Krawiec and Gulati -- confirms this.  BBQ, not as much.  Even the "southern" place on Franklin street, Crook's Corner, confirms this.  (Little vignette here -- Crook's Corner is where I went for my interview dinner when I came to town back in like September 2007; Senator Edwards was there having dinner with a fabulously attractive -- fabulously attractive -- woman.  Putting two and two (or maybe it's one and one) together post hoc, I think that must have been Rielle Hunter who was with him.)

Students are, I think, very into leveling of faculty -- and there are few things in which I have less talent (or am more out of my comfort zone) than music.  So, from the students' perspective, this is ideal!  Thus, while my law professor friends in Chapel Hill were off working on their trusts and estate treatises or resting up for another day of work, there I was in Bub O'Malley's pouring over their book of songs, looking for what required the least amount of talent possible.  To make matters worse, there were students from the library school there that evening, so this became a competition between the UNC law school and the library school.  I have to admit they have some pretty talented students over there.  One should never underestimate the power of people who control access to knowledge.  I didn't see their faculty advisor there -- another sign that librarians are smarter than lawyers (or at least all UNC library school faculty are smarter than this law professor).

Anyway, to complete the leveling: I promised the students that I'd post a picture of me.  Here it is -- a reminder perhaps for next year of what not to offer for the auction?  Or maybe, as one of my students said, this should be titled, "what was I thinking?"

Publish First, Research Later—or Perhaps Never: Rappaport and the Police Power

 

 

Mike Rappaport’s Liberty Blog Post claims that a “singular legal concept of the police power”   did not exist in the Founding era.  The classic invocation and definition of that power was articulated in COMMONWEALTH vs. CYRUS ALGER (1851)

“The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.” (emphasis added)

This was precisely the power described by the 1776 Pennsylvania Constitution:  “That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.”  Indeed one might argue that conceptions of the police power in the Founding era were broader than in the next century.  It is worth recalling that Blackstone devoted an entire chapter to   “Offenses Against the Public Health, and the Public Police or Oeconomy.”  Although Blackstone does not use the term police power, he describes an extensive power to punish individuals whose actions pose a threat to public health, welfare, or morals.    According to Blackstone, members of society were bound to “to conform their general behavior to the rules of propriety, good neighborhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations.” In his edition of Blackstone, St. George Tucker provided examples of how this legal concept had been implemented in Virginia.  In 1788 a Pennsylvania court endorsed the Blackstonian notion that “every act of a public evil example, and against good morals, is an offense indictable by the common law.”   In light of scholarship by William Novak, Christopher Tomlins, and Markus Dubber on the  police power in the Founding era, I remain confused and perplexed by Mike Rappaport’s contention that  there was  no “singular legal concept of the police power.”  Perhaps Rappaport can provide some historical evidence and  explain why Novak, Tomlins, and Dubber are all wrong. I fear that  his publish first, research later,  approach is becoming  common in the  blogosphere. I might be old fashioned, but I think it is always better to research first, and publish later.